Rule 32(h) Notice through a Presentence Report and the Upholding of Significant Upward Departures – A Commentary on United States v. Ricky Artis (4th Cir., Aug. 21 2025)

1. Introduction

United States v. Ricky Artis is an unpublished—but nonetheless insightful—Fourth Circuit opinion that affirms a 204-month sentence for an attempted Hobbs Act robber who shot his victim twice, leaving him permanently paralyzed. The panel (King, Wilkinson, Maddox, JJ.) addresses four sentencing complaints, providing fresh guidance on three recurring issues:

What type of “advance notice” satisfies Fed. R. Crim. P. 32(h) when a court sua sponte contemplates an upward departure;
How appellate courts evaluate the substantive reasonableness of sizeable (53-month) upward departures beyond the advisory Guideline range; and
Why broad warrant-less search conditions imposed at supervised-release may survive plain-error review and do not automatically signal judicial vindictiveness.

2. Summary of the Judgment

The Fourth Circuit affirmed every aspect of the resentencing conducted by the Eastern District of North Carolina:

Rule 32(h): The presentence report (PSR) itself supplied adequate notice that the court might depart upward under USSG §§4A1.3, 5K2.2, and §2B3.1, cmt. n. 5.
Upward Departure: The 204-month sentence—53 months above the top Guideline of 151 months—was procedurally and substantively reasonable given (i) permanent paralysis of the victim, (ii) defendant’s intent to murder, and (iii) an extensive criminal history.
Vindictiveness Claim: The imposition of warrantless search conditions on supervised release did not give rise to any presumption of judicial vindictiveness.
Search Condition Reasonableness: Because defendant failed to object below, no “plain error” was shown in either the breadth or explanation of the search condition.

3. Analysis

3.1 Precedents Cited and Their Role

United States v. Taylor, 596 U.S. 845 (2022) – Eliminated the §924(c) count, necessitating resentencing on Count One alone and raising the potential for firearm-discharge enhancements under §2B3.1(b)(2)(C).
United States v. Blue, 877 F.3d 513 (4th Cir. 2017) – Standard for abuse-of-discretion review of sentences.
United States v. Fowler, 58 F.4th 142 (4th Cir. 2023); Arbaugh, Lewis, Lester – Collective articulation of procedural and substantive reasonableness inquiries.
United States v. Nance, 957 F.3d 204 (4th Cir. 2020); Provance, 944 F.3d 213 (4th Cir. 2019) – The “larger departure → stronger justification” framework.
United States v. Elbaz, 52 F.4th 593 (4th Cir. 2022); Comer, 5 F.4th 535 (4th Cir. 2021) – Plain-error rubric for unpreserved objections.
United States v. Neal, 101 F.3d 993 (4th Cir. 1996) – Definition of a “plain” error (must be clear or obvious).

By weaving these authorities, the panel confirmed that:

The existence of potential upward-departure grounds in the PSR triggers the Rule 32(h) notice requirement, thereby foreclosing a claim that the district court “sprang a surprise” at sentencing.

3.2 Legal Reasoning

(a) Rule 32(h) Notice

Rule 32(h) mandates “reasonable notice” if a court intends to depart from the Guidelines “on a ground not identified” in the PSR or pre-hearing submission. Because the PSR here explicitly flagged §§4A1.3, 5K2.2, and 2B3.1 n. 5, the Fourth Circuit held notice was embedded in the record; the court even paused mid-hearing and reminded counsel of that potential departure, further insulating the sentence.

(b) Upward Departure & Extent

Applying the Nance/Provance proportionality lens, the panel deemed the district court’s explanation “robust” enough to support a 35% increase over the top Guideline. Key facts:

Major permanent injury (wheelchair-bound victim) – textbook trigger for §5K2.2.
Intent to murder – expressly authorized by §2B3.1 n. 5.
Gun jammed – the only reason the victim lived, underscoring the intentional nature of the violence.
Extensive criminal record and repeated supervision failures.

Hence, both prongs of reasonableness (procedure and substance) withstood abuse-of-discretion review.

(c) Warrantless Search Condition & Vindictiveness

Because Artis did not object below, review was for plain error. To establish “judicial vindictiveness,” a defendant must identify objective indications that the court penalized him for successful appellate relief. Here, the new search condition:

Was proposed by Probation;
Was tailored to reasonable-suspicion triggers; and
Came with a 12-month reduction in custodial time relative to the original sentence.

Thus no presumption of vindictiveness arose, and no obvious legal error was apparent in imposing a standard search condition routinely approved in the circuit.

3.3 Potential Impact

Though unpublished, the decision is likely to be quoted for two propositions:

PSR as Sufficient Notice: Defense counsel must scrutinize PSRs and proactively contest flagged departure grounds; silence will forfeit Rule 32(h) challenges on appeal.
Durability of Broad Search Conditions: The panel’s plain-error holding reinforces that district courts retain wide latitude to impose warrantless search conditions—especially when framed with a “reasonable suspicion” safeguard—without elaborate, on-the-record justifications absent an objection.

The case also equips prosecutors with language approving sizeable upward departures where (i) permanent disability is inflicted, and (ii) the Guidelines do not fully capture homicidal intent.

4. Complex Concepts Simplified

Upward Departure vs. Upward Variance: A departure relies on Guideline policy statements (e.g., §5K2.2), whereas a variance rests on statutory §3553(a) factors. Courts often announce both routes as a back-up.
Rule 32(h): Ensures defendants are not blindsided at sentencing. If the ground for departure appears in the PSR (or pre-sentencing memo), no separate notice is needed.
Plain-Error Review: Four-part test. Importantly, the error must be “plain” at the time of appeal—i.e., contrary to clearly settled law.
Judicial Vindictiveness Doctrine: Presumes retaliation when a judge imposes a harsher sentence after a successful appeal unless the record shows objective, new information justifying the increase. Here the sentence actually decreased.

5. Conclusion

United States v. Artis strengthens the procedural blueprint for upward departures by:

Recognizing a PSR as adequate notice under Rule 32(h);
Endorsing detailed, fact-centric explanations to justify departures exceeding 50 months; and
Clarifying that standard, reasonable-suspicion-based search conditions on supervised release are unlikely to be overturned absent contemporaneous objections.

For practitioners, the decision is a reminder that silence at sentencing invites the stringent “plain error” barrier on appeal, while for district judges it underscores that thorough on-the-record reasoning—rooted in specific §3553(a) factors—will sustain even substantial departures from the advisory Guidelines.